Category Archives: Housing and support

I have spent the last four years working for Shared Lives. I am leaving, imminently, to do something completely different. This ending is causing me to look back over the time I have spent within this wonderfully quirky organisation.

I saw an advert for a job at Shared Lives shortly after relocating to the South West. I had been qualified as a social worker for around 9 years, working in outer London, and had never heard of Shared Lives. Seeing the organisation described within the advert made me want to find out more.

Maybe I hadn’t heard of Shared Lives because I worked within a generic adults team, whereas the Shared Lives model is more widely used within the learning disability sector, for no other reason than this seems to be where it started. The more I read, the more I started to think “Yes! This is what I would want for myself! This is the kind of care I would want if I was unable to live without support.” I admit to a certain amount of selfishness when thinking about how positive it made me feel that there might be another way to receive care. I had feared becoming disabled in some way and then not being able to continue my lifestyle in the way I wanted – going out late and not telling anyone when I might get back, for example… How would that work with multiple risk assessments coupled with my desire to lead an unhealthy and unwise social life filled with the wine that I’d spend the majority of my money on!? It always amazes me that social care is not more to the forefront of all of our minds. We are all, at risk of sounding morbid, only one accident away from life changing injury that might suddenly plummet us into a world of lessened choice and control.

As I started to learn more about the people who work as Shared Lives carers, and the people who live with them, I also started to hear questions from professionals. I remember one in particular: “aren’t you creating dependency by encouraging people to forge deep relationships with their carers?” Shared Lives carers care deeply about and, dare I say it, often love the people they support. Only recently I spent time speaking to a tearful grieving carer who had spent in excess of 20 years caring for someone who had recently died. She had lost a member of her family and she felt this as acutely as anyone else, regardless of her ‘paid carer’ status.

I started to think about the people who make my life fulfilling; my friends and my family. Am I ‘dependent’ on them? Well I guess yes, in a way I think I am. But does that mean I should protect myself from all hurt, and hold back? Is it better to have loved and lost than not ever to have loved at all? Yes, relationships break down, and it hurts – really hurts. But does that mean I should stop forging relationships that might inevitably cause me heartache?

This led me to think about a wonderful story that shouldn’t even be a wonderful story – we recently celebrated a couple getting married within Shared Lives. Leaving the Article 8 ‘right to family life’ aside for a minute, these two people had cared about each other deeply for many years. However, the system they lived within had kept them apart. One was in a residential home and another wasn’t. It took the combined will of a number of professionals to seize opportunities when they arose. Firstly, the man moved in with Shared Lives carers due to a change in his circumstances – that took a worker who listened to him. After moving in, he continued to see the woman he loved with the support of the carers. It then took another worker who knew the woman well and who listened to her, to work with a range of professionals to support her to have her wish (and human right) to move in with the man she had loved for years. It worked – they moved in together, got engaged and were married – she in a beautiful dress with the biggest smile, and he looking as proud as any husband could do. They had bridesmaids and plenty of guests. Their carers helped them to organise everything and were there as part of their family to celebrate. The carers’ children were there as part of the family to celebrate; and what better way for children to grow up – without the lines that often divide those of us without disabilities from those of us with them.

Although I felt really happy looking at their photos I also felt sad and angry that this should be something so special. Why should they have had to wait so long? Why IS it so unusual for two people to do something as ordinary as the rest of us? When asked, they rightly both wanted to know why would we want to celebrate their story. Why should we? Why can’t they just get married and then get on with their lives, like you or I would…? We appreciated their agreement that we could put their story in our newsletter, but we respected their wish for an ordinary wedding followed by an ordinary married life, regardless of our desires to shout about this story from the rooftops. But we shouldn’t have had to shout about it, should we? It shouldn’t be unusual, it should be something we don’t blink an eye about, other than to wish them well.

Every time I talk to anyone involved with Shared Lives they relay the ‘success’ stories of people just living their lives. The people who live with Shared Lives carers don’t necessarily talk about the cruises around the world they have had, the holidays abroad, the travels in the family caravan, the camping trips in France, the meeting with celebrities. They talk about the people they know, the children they live with and help out with, walking the dog, going out with friends, going to church, travelling to the shops, getting a motorbike licence, work, college, decorating, going out for coffee, shopping, cooking, having their hair done, having their own children, finding a partner – all the ordinary things that we take for granted, because we live outside of ‘serviceland’.

Of course Shared Lives isn’t perfect – we have the same struggles that many other providers have; demonstrating outcomes, ensuring our MCA compliance, evidencing our MCA compliance, negotiating payments, considering DoLS, evidencing that we have considered DoLS, writing our contracts for commissioners, evidencing that we are a safe service, writing plans, reviewing those plans, setting more outcomes, demonstrating value for money, evidencing value for money. All of these things need to continue to be done, hopefully in a way that doesn’t impact too much on the lives of the people – who, if we are really successful, need not feel like they are receiving a service at all.

Other than my departure, the other thing that caused me to reflect on my time in Shared Lives was a tweet shared by @sarasiobhan – it was a quote from a book by Dean Shrock ‘Why Love Heals’. I have not read the book but the words struck a chord: “…no other factor in medicine, not diet, not smoking, not exercise, not stress, not genetics, not surgery, affects our health, quality, and length of life more than feeling loved and cared for…”

Housing law has seen a lot of action in the last year. There have been cases about which council is liable for social care when one council has placed a family out of area for what’s known as the Temporary Housing duty; and another one about the extent to which a council can even ‘post’ people a long way from their current setting, under the Housing Act.

But the most important case has been one which has changed the correct approach to a central concept in who is owed a housing duty: that of vulnerability and priority need. It’s called Hotak.

Housing officers had been encouraged to treat people with obvious needs in this manner, as being lawful: “You are not vulnerable, because you are no more vulnerable than the usual run of street homeless people in our locality”. They had been doing this so as to focus on housing the most vulnerable, locally, and the court in Hotak, has said no – in fact the council’s duty is to house any vulnerable person (subject to the other criteria of eligibility, homelessness and not being intentionally homeless, of course.) The long standing est in Pereira, decided in 1999 has been overridden, and the court has reiterated that the duty is not affected by the shortage of housing or other financial resources available to the council. A duty is a duty, after all.

That message will have a positive effect for Care Act duties are interpreted, and is a good sign of robustness in the judicial approach to duties as opposed to discretions.

It’s all the more important for people now working in First Contact roles or Advice and Information roles to be aware of (or ideally offering a co-ordinated steer in relation to) the interface between housing and social care rights – because securing housing in specialist but unregistered accommodation or ordinary housing association properties through nomination rights, can be something that the Housing department organises – by dint of an evidence basis about vulnerability, disability, priority need etc, by social work or care management staff.

Legal Aid lawyers with a Housing ticket from the Legal Aid Agency are permitted to assist people with Care Act issues, if the person is homeless or threatened with homelessness – through an amendment to the Legal Aid legislation found in the Care Act and Children and Families Act, which is a good way of ensuring that some more lawyers embrace community care law. So there is some hope for legal challenge!

What does the Hotak case say?

H and the other people in the cases heard together were all homeless and male. The Housing Act defines as being in priority need, people who are vulnerable as a result of old age, mental illness or handicap, or physical disability or other special reason, and there is no comparator specified.

Merely being homeless does not constitute priority need, and nor does simply being old or ill or disabled. But if those issues put one at greater risk of harm than an ordinary person who was homeless, then that was enough. If a person was disabled or had some other protected characteristic under the Equality Act, then a housing authority bound by the public sector equality duty in that Act needed to give the case heightened scrutiny.

From now on, the comparator is to be an ordinary person, who is in need of accommodation, not ordinary homeless or street homeless people, or people in the particular locality.

‘Significant’ connotes ‘more than minor or trivial’, or ‘substantial’.

If a person has a carer or family member to help them, that is relevant to vulnerability, but only if the existence of that person obviates the vulnerability altogether, not because the need centres upon something that the carer or relative can achieve for the person. if the vulnerability is not wiped out altogether by the help, the person’s supporter can then be housed with the individual deserving of being found to be vulnerable.

Which comes first, housing or social care, in terms of legal hierarchy?

The answer to that is easy! it’s the housing duty. Section 23 of the Care Act makes that clear.

In practice, however, the courts have always allowed the notion of what is a reasonable time for dischargingthe homelessness duty to a vulnerable person in priority need, to be extended, massively, by reference to how very hard it is to find suitable accommodation for people.

It is that fact which means that in practice, integrated or singular adult social care teams may well have no option but to accept that they must use the Social Care department’s resources, and statutory powers or duties, temporarily, rather than those open to their local Housing colleagues, in order to manage the risk to the person’s wellbeing in the meantime.

There will therefore continue to be some people who need to be placed in care homes, or boosted into units in social housing, where Social Care holds the nomination rights, on account of the extremity of their needs. That question is no longer determined by FACS, but by the eligibility criteria regulations (inability to achieve two or more domains plus consequential significant impact). The fact that access to a roof over the head of the person may be the only way of meeting the need is not a question relevant to eligibility but only to care planning and commissioning!

The duty in the Care Act to co-operate with other councils or one’s own colleagues comes into play here, see s6 (4)(b) for specific reference to housing authorities and colleagues. Arrangements must be made for co-operation and all councils should have reviewed their relations in this sphere by now, for practicality and smoothness. This d should ensure that an embarrassing flow of case law about warring teams as to whose jobsomeone’s situation really is, and whether Adult Social Care functions ARE the only way of meeting the need, is limited…

Impact on training and education

Someone (preferably more!) in a unitary or county and district council set-up needs to know about both adult social care law and housing law, it seems to me, in order to ensure that this interface operates fairly and is realistically manageable.

My training team provides specialist half days and whole days about the relationship and we are always up to date. (Sorry for advertising, but we have to make a living!). Email belinda@careandhealthlaw.com if you can see the sense of getting us in.

Ordinary residence is a concept that is used in social care law to tie a person to a particular council for the purposes of determining which council has to fund their assessed eligible care and support needs.

The legal meaning of the notion of ordinary residence has always been firmly tied to a person’s intention – their intention to live somewhere, for every day daily living purposes….

So, in order for a person’s ordinary residence to remain with one council, if they physically move to another, one needs to find a special reason in the rules – or some fact which negates their intentionality, which would otherwise be inferred from their upping sticks and moving.

For instance, an example of the latter is a person’s moving away for a specific work contract, whilst leaving all their stuff and status in place in the old area, like their possessions, their council tax payments, etc. Their move is temporary only. Of course a temporary move can become a permanent one, if their intentions change once they get there; and a person’s arrival on day ONE, somewhere new, can signal the most clearly permanent intention to move – there’s no fixed time in a place required, for setting up one’s shift in o/r, if one’s mind is made up.

An example of a special reason in the rules, however, is that of DEEMED continuing ordinary residence. That concept is the exact opposite of the ordinary rule – that is, one is deemed to remain o/r with one’s old authority DESPITE one’s intention to live elsewhere for ordinary every day purposes being categorically clear.

That’s always been the rule for those being PLACED (ie contracted for by a council) in a care home, or PLACED in supported living setting (unregistered accommodation) without a valid tenancy and agreement to pay the RENT, having been understood by the person him or herself (or by a lawfully authorised deputy or attorney if the occupant personally lacked capacity to understand the contractual obligations s/he was agreeing to be bound by).

The new Care Act regulations extend the application of this DEEMING concept to people moving to certain kinds of supported living, whether or not they have a tenancy which they are paying for themselves or through Housing Benefit – or have been formally placed there under a council contract for the accommodation fee as well as the care – and this is where it gets surreally difficult to follow the idea behind the changes.

The definition of the types of supported living within the regulations for deeming is not clear – one of the several formulations is that it has to be premises intended for people with care and support needs where personal care is available if required.

When one considers that personal care can be made available to anyone who’s eligible in relation to the three ‘outcome’ areas related to personal care inabilities, in the eligibility regulations, and wherever they live, if it is required, through an application for care services under the Act, and that the intention bit of the definition is unspecific as to whose intention we are supposed to focus on (- we think it can only mean the landowner’s intention) – you can see how continuity of specialist care funding and a person’s transition from one place to another is going to get HARDER to be clear about, not easier.

And what does ‘available if required’, really mean? Is personal care ‘available if required’ for instance, in one person units in a block, all occupied by people with learning disabilities and epilepsy, where there is no sleep in space and no registered provider of personal care on the premises? The regulations appear to be based on the belief that Supported Living is a concept that means one thing, all over England.

But it doesn’t. Supported Living is the euphemism we used for 30 years under the old law, since the ‘NHS decant’ projects first started in the 1980s, for home care services (non-residential packages) going INTO accommodation which counted as the person’s own home, through ownership, or rental (tenancies).

It includes settings owned and operated by both registered social AND private sector landlords

The only clear rule is that the basis of occupation must be legally and factually separate from the arrangement for care, even if the direct landlord is the same entity as the provider of the care.

If the arrangements are legally or factually integrated and mixed up (for instance, the tenancy obliges the person to have care, or pay for care even if they don’t accept it, or obliges the person to accept care from the landlord’s personal care business, or from any agent operating on their behalf) then the package is a package of care together with accommodation, and would count as a care home. If unregistered, CQC has to uphold the law and would have to prosecute the unregistered provider, who would blame the council, inevitably, for manoeuvring the provider into letting to people ‘nominated’ by the council.

That’s why there can never be any expectation of the landlord or their associated care provider inevitably being chosen to be the provider of care: the tenant may want a direct payment to purchase services from someone else, although logically, the provider entity on site or very close by should always be the cheapest and therefore the one the council WANTS the person to be happy with.

Where the arrangements are properly separate, then the landlord can be the same person as the care provider, so long as he, she or it is registered with CQC for the provision of personal care to a person in the place where they are living.

And that covers any provider of services if what they are doing involves personal care, defined in the Scope regulations as extending to prompting together with supervision, of personal care tasks.

And aggravation from all this behind the scenes legal stuff leaves out of account the other very ticklish problem that has been brought about by the wording of the regulations. Even if the premises you are moving to, ‘fit’ the defintion, you are only seen as deemed to be of continuing o/r, with your old authority, if you are a person who has been said in your care plan to have needs that can ONLY be met by moving to that particular kind of accommodation.

Not assessed in such manner, please note, because WE DON’T ASSESS FOR SERVICES, UNDER THE CARE ACT!!

No, the magic words arise at the care planning stage.

How hopeless is this, I have to ask (- and I did shout loudly about, to the DH, well before D-Day for the Care Act) – for the poor social care professional faced with a care plan document that doesn’t even have a space on it for that formulation?

If they put the magic words down, they lumber their council with deemed continuing ordinary residence responsibility for the foreseeable future!

Even harder, when the very week before the move, the person was happily living in a care home, and has not been the driver behind the move to supported living: how can a practitioner POSSIBLY say that supported living is the only type of accommodation that can meet the person’s needs?

Even harder, if the person hasn’t moved at all, but the building has just de-registered!!

Impossibly hard, I am thinking, if the person in question wants to move out of area where the only suitable provider is twice the price of a provider in the area – a provider who is arguably suitable, at least, to meet the assessed eligible needs, in borough. If the person is to move as a tenant, ie directly responsible for the tenancy obligations, they will not get Choice of Accommodation under the parallel and similarly though not identically worded regulations for that notion – because they will have GOT choice, by signing the tenancy for themselves or through a deputy. Without the magic words on the care plan, they will be stuck in limbo between two councils, neither of whom wishes to treat the person as their legal funding responsibility.

The trouble that this all points to, is lack of public debate about the purpose of the changes, in my view.

Sure, I understand absolutely that councils were fighting the building of bespoke supported living developments on their patch, because they magnetised people with extensive care needs to the area – and their o/r changed when they came as tenants. If the old council now remains responsible, then logically, it should all be fine, and the nation’s housebuilders can start building again….and care homes will need to look lively, and diversify…

But the pre-Act rhetoric behind ‘continuity’ policy was pretty non-specific – circling round the idea that people with disabilities should be able to live ‘wherever they want to’, just like the rest of us. That’s not even true, though,for the rest of us, is it?!! We all have to cut our cloth in proportion to our means, and living in Chelsea just ain’t the same as living in Blackpool, rent wise,even if we haven’t got care needs. If we have special circumstances in our lives, that compel some planning, before packing a suitcase, then of course we have to think about what we’d be entitled to get when we got there. And if the rent is going to be oddly low, because of HB being seen as the route for paying for it, and because the specialist provider is the only one in the area to be able to cope with specialist needs autistic, or personality disordered, or epileptic clients, then of course the CARE costs are going to be unusually high. This is not rocket science.

Conclusions for now!

In conclusion, the three most serious legal issues are these:

1. Can a council lawfully apply an In Borough provision policy, in general, and in particular, to an individual person who is eligible, given that the deeming rules exist and seem to enable a person to move whilst remaining tied to their old council, supposedly for the benefits that that brings?

Can the council KEEP them there, on grounds of cost, and still be said to be promoting their wellbeing? (that question is asked, leaving aside the separate and pre-Act Human Rights issues, and the links the person may have in the area where the council organised for them to be schooled until they were 25!)

We all know that best value and cost is legally relevant to HOW to meet needs, but that’s cost in relation to needs. What if the person WANTS to live in a particular area, as a tenant, but cannot actually hope to establish that they really need to?

2. And where is a person ordinarily resident, if they have got fed up of waiting for the old council’s commissioner to persuade/bully a provider, elsewhere, into accepting a bearably low care fee, and the person has just upped sticks and bloomin’ well gone, signed the tenancy, and moved in?

Remember, in those circumstances, they won’t have got a finalised care plan with the magic words on it, so “It’s not US”, the old council would say – but the new council won’t have thought to budget for people coming in these circumstances, and won’t want to start paying the fee of the provider that it has long loathed for having had the courage to take a business risk and build this kind of provision, on that council’s patch! In that situation, the continuity provisions in ss37 and 38 may be the only ones that can apply!

3. The third one is too much for me before caffeine – it’s how these rules fit in with the status of a s117 Mental Health Act client, who might have been provided with this sort of specified accommodation before they were sectioned, and thus not need accommodation in their s117 Care Plan. Another day, another blog for that one, methinks!

The Care Act was supposed to simplify matters for people with disabilities and for councils too, remember!! I don’t quite know how it came to this, therefore, when we had 3 years to sort this out, before the Act came into force.

For me, though, the one good thing is that the statutory disputes resolution process in the Care Act for councils fighting each other will mean that the Secretary of State has to make the decisions, according to the rules and guidance that the Department of Health itself drafted!

That should be interesting, then! The DH is committed to publishing its decisions, but they themselves can be judicially reviewed, if they don’t get the application of the law correct!

For now, the practical consequences are these:

RSL and other Housing Providers aiming to provider care in the setting will have to have contractual relationships with commissioners from all over the place, instead of just the one, on the spot;

Young persons’ transition workers will have to understand the law of ordinary residence much better (and we are still awaiting the Supreme Court’s decision in the Wiltshire v Cornwall v South Gloucestershire case, I think);

Very high cost specialist care providers will have to decide whether to let people into possession or not, without o/r being agreed – then getting one or the other council, somehow, to seek an interim injunction from the Administrative Court to enforce care funding from SOMEONE in the meantime!